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Browsing: Legal Papers of John Adams, Volume 1

Docno: ADMS-05-01-02-0005-0003-0003

Author: Adams, John
Date: 1771-06

Adams' Minutes of the Trial1

Essex Superior Court, Ipswich, June 1771

Lee vs. Bancroft. Ipswich June 1771.
Lowell. Cun. 173. Concealment of Intelligence, a Fraud. Each Party ought to know all the Circumstances.2
178.–179. 184.3
79 days from G[ordon's] sailing to the Insurance,4 which was a good Chance to have heard of her Arrival at any Part of the W. Indies.
J. Pedricks Deposition. Gordons Protest. Jab. Harlow's Deposition.5
Captn. Jos. Howard.6 Arrived from M[artinique] 7th. Novr. Saild, 7. Octr. Frenchman arrived from Guadaloupe. Deposition vid.
Mr. Shillibeare.7 I asked whether the Vessells were in Time or { 193 } whether the Chances were fair. A few days after Mr. Hooper8 came into the office and enquired if Lee said nothing of his having a Chance. Then he has taken you in, &c. From 20 to 26 or 27 days a common Chance.9 I would not have wrote under 50 Per Cent. I did not know there was such a Man as C[aptain] Howard. Never heard of his going to the W. Indies. I have been Master, but never was strictly bound up.
C. Hodges. 3 Vessells together.10 Dont remember any Questions put to him. No dispute—all seemd fair. Hooper came in and said We were taken in. Somebody said We should have looked to our Title. Never knew a Policy underwrote without enquiring when the Vessell sail'd. Something said in the office about the Vessells being over[set] before she sail'd. At the Time when Lee was in the Office and Cabbit11 present talking with Lee. It appeared to me to be in Time and a customary Praemium. One said she was fair, in season, in Time. They often take it from the 1st. underwriter [who] enquires the Circumstances. Those that follow sometimes take it for granted.
Jos. Hodges.12 Lee wrote the Minutes himself. Cabbit said fair Chances I suppose. Yes. I Asked how long those Vessells had been out. Lee made a Pause. Lee said the 1st. Advice will give an Account of 2 of em. And it did. 2 were taken. I relyed upon Lees Honour that he would not put in an unfair Chance. 30 days a Chance. I did not know of the Arrival of Howard. I would not have wrote upon any Consideration. Dont remember Powers13 being mentiond. Fellows not mentiond that I remember. Many Vessells at that time had long Passages. Knew Howard was an [Eastern?] Master. But should not have thought to enquire W. India News of him.
Jona. Gardiner Junr. Nothing said of Howards Arrival. I did not know of it. Coll. Lee once scratched his Name out once and said he { 194 } never took desperate Chances, and never put in unfair ones. A Man of Character declaring it is a fair Chance is generally satisfactory.
Jona. Ropes Junr. I underwrote for Pedrick, and was a good Mind to take £20 more for Lee but did not. I did not know of Howards Arrival. I knew when she sailed. But it might be because, We must write on all 3 or none. The Risque not so great when a Number, as on one. Dont know that ever I underwrote first without enquiring when the Vessell sailed, and the Circumstances.
George Dodge.14 C[ol.] Lee said fair Chances. I had underwrote upon Gordon before, and did not know of Howards Arrival. I have made several Voyages in 14 Weeks. Hoopers News was received in the Office with surprise, and uneasiness.
Warwick Palfry. She might have returned and made her Voyage in 79 days. I knew a Vessell that performed 3 Voyages [nearly?] in 10 Weeks and 3 or 4 days.
Saml. Ward. Lee said he never put a Vessell in out of Time and never took a desperate Chance.
Gordons Sailing Orders.15
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Timothy Cunningham, The Law of Bills of Exchange, Promissory Notes, Bank Notes, and Insurance 174 (London, 3d edn., 1766). The language here was drawn from two cases in which the facts favored the insurers rather more than in the instant case. See De Costa v. Scandret, 2 P. Wms. 170, 24 Eng. Rep. 686 (Ch. 1723) (Insured had heard that ship looking like his was taken); Seaman v. Fonereau, 2 Str. 1183, 93 Eng. Rep. 1115 (K.B. 1743) (Insured had intelligence that vessel had been leaky and was lost sight of just before a hard gale).
3. That is, Cunningham, Bills of Exchange 178–179, 184, citing Rooke v. Thurmond (unreported, K.B. 1743) (Dictum that policy void if insurers could prove that insured knew that another vessel, which sailed from Carolina ten days after the insured vessel, arrived in England seven days before the underwriting); Green v. Bowden (unreported, K.B. 1759) (Policy void where insured had informed insurers that his ship, which was lost on 25 Aug. between Naples and Leghorn, had been safe in Naples on 8 Aug., when in fact she had been safe there on the 3d).
4. That is, 79 days from 4 Sept., the date on which the master, Nicholas Gordon, sailed from Marblehead, until 22 Nov., the date of the underwriting.
5. The deposition of Joseph Pedrick, owner of the other half of the enterprise; the protest of the master, Nicholas Gordon, on the loss of the Merrill; and the deposition of Jabez Harlow, master of the vessel which finally brought Gordon and his crew home, may be found in SF 132239. This evidence supports the allegation that the master's orders were to proceed to Martinique. For relevant portions of the protest and other evidence on this question, see No. 11.
6. Captain Howard's deposition, “Sworn in Court, June 19, 1771,” states in part that
“About 14 days before I left Martineco one Monsr. Misinaire arrived there from Guadeloupe of whom I inquired if any vessels was there belonging to Marblehead or Salem. ... As to vessels he told me there was none belonging to Ither of those places. ... When I arrived at Marblehead I was inquired News of by Sundry persons and at Salem when I Entered but can't Remember any persons Particularly. I heard no news of Capt. Nichols Gordon belonging to Marblehead from the time I left it to my return [3 Nov. 1762].” SF 132239.
7. William Shillaber, the underwriter whose successful defense to Lee's action started the litigation. See note 2 above. Shillaber's deposition of 3 Nov. 1770, with some further details of the underwriting and of the conversation with Hooper, is in SF 132239.
8. Robert “King” Hooper, Marblehead's wealthiest merchant, and Lee's brother-in-law, Roads, History of Marblehead 350, 354; Stark, Loyalists of Mass. 222–223.
9. That is, a chance to have heard news of the vessel's safe arrival. Here the “Chance” was 34 days, the interval between the departure of the Merrill from Marblehead on 4 Sept. and Howard's departure from Martinique.
10. Presumably John Hodges (the “C” standing for “Captain”), whose deposition in the file of Goodhue v. Lee indicates that he was present in the insurance office at the time of the underwriting. SF 131923. Lee insured two other vessels with the Merrill. See Shillaber's testimony, text at note 247 above.
11. Josiah Cabot, one of the underwriters.
12. Joseph Hodges, one of the underwriters.
13. Another Marblehead captain who departed in one of Robert Hooper's vessels at about the same time that the Merrill sailed. See Shillaber's deposition, cited in No. 11, note 73.
14. One of the underwriters.
15. Gordon's orders are in SF 132239. In his deposition, sworn in court in Nov. 1770, also in SF 132239, he contradicted their impact. See the relevant parts of each as set out in JA's minutes in No. 11.

Docno: ADMS-05-01-02-0005-0003-0004

Author: Adams, John
Date: 1771-11

Adams' Minutes of the Argument1

Essex Superior Court, Salem, November 1771

Salem. Novr. 1771. Lee vs. Bancroft.
Lowell. 24 or 25 days a Chance. Passages from 17 to 25.
Vessell in Time. A fair Chance. Did not mention how long she had been out, nor Howards arrival.
C[ol.] Lees Character so respectable, and Knowledge so perfect, that “a fair Chance” &c. from him would preclude all Enquiry.
1764 Jany. 28. Receipt for Money.2
Judge Hutch[inson] mentiond a Case in Wilson3 that the Court { 195 } will not sustain an Action when the Policy is or has been under Refference. But the Clause in the Policy, that it shall be left to Arbitration, shall not preclude an Action.
Moses vs. Macfarlan. Burrows. Vol. 2d. 1009.4 Money paid upon a Risque deemed to be fair.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. That is, Lee's receipt to Bancroft for £20 paid out on the loss of the Merrill, in SF 132239.
3. Kill v. Hollister, 1 Wils. K.B. 129, 95 Eng. Rep. 532 (1746). The case held that an action lay on the policy since there had been no reference and none was pending.
4. Moses v. Macferlan, 2 Burr. 1005, 97 Eng. Rep. 676 (K.B. 1760). In this famous case the defendant had recovered against the plaintiff in the Court of Conscience upon notes indorsed by the plaintiff under an agreement that the defendant would not hold him liable on them. The latter court refused to hear evidence of the agreement, and the plaintiff brought an action at law in assumpsit for money had and received to recover the sums thereby awarded. While Lord Mansfield's decision that the action lies on the implied promise is the point for which the case is best known, the defendant had also argued that there could be no recovery of money awarded by the judgment of a court of competent jurisdiction. Mansfield held that the action was not inconsistent with the prior judgment because the Court of Conscience had properly concluded that the agreement was not before it. In the process he enlarged upon the theme that a new action could always be brought to attack a judgment on a ground that was not available as a defense against that judgment. The phrase noted by JA, which is from that portion of the opinion, appears in the following passage: “Suppose a Man recovers upon a Policy for a Ship presumed to be lost, which afterwards comes Home;—Or upon the Life of a Man presumed to be dead, who afterwards appears;—Or upon a Representation of a Risque deemed to be fair, which comes out afterwards to be grossly fraudulent.” 2 Burr. 1009–1010. As to the case, see C. H. S. Fifoot, Lord Mansfield 141–157 (Oxford, 1936).
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